2022 (6) TMI 280

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....nt, they are engaged in the business of providing passive telecom infrastructure support services to various telecom operators, such as, Airtel, vodafone etc. While so, they were issued with revised notice dated 30.08.2012 under section 4 of the TNVAT Act proposing to levy tax at 12.5% on the premise that they were engaged in transfer of right to use goods, besides penalty under section 10A of the CST Act on the ground that they misused the 'C' forms in respect of purchases made by them since they are not engaged in any transaction of sale, but only in service. Challenging the said notice, the appellant preferred W.P.No.26423 of 2012 mainly contending that the impugned notice has been issued with a pre-determined mind, as there was ....

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....ransfer of right to use goods over the infrastructure, thereby not constituting sale under TNVAT Act. It is also submitted that the respondent has also proposed to levy penalty under Section 10A of the CST Act for the alleged misuse of 'C' Forms in respect of purchases made by the appellant on the premise that they are not engaged in any transaction of sale, but only involved in service, by contravening his own proposal in the notice to levy tax on deemed sale by way of transfer of right to use under TNVAT Act. Thus, according to the learned counsel, the respondent does not have jurisdiction to issue a combined notice both under TNVAT Act and the CST Act, since both the proceedings are different and independent. Without taking note ....

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....ey receive rental income from the service provider. The contention that the Control and possession over all goods and equipments at a telecom site remain with ATC India Tower Corporation (P) Ltd at all the time and is never parted with, is immaterial." Thus, it is evident that the respondent refused to examine the contentions raised by the appellant with respect to the control and possession over all goods at all times, but never parted with it, as the same are irrelevant. In any event, the respondent has already decided to conclude levy of tax and penalty against the appellant, without even waiting for the objections filed by them. While so, the revised notice issued by the respondent cannot be allowed to be sustained. The learned Judge....